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tv   Key Capitol Hill Hearings  CSPAN  November 18, 2014 3:00am-5:01am EST

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the study in all probability is just the tip of the iceberg. mentioned a minute ago that the obligation the prosecutor , is derived from two sources. clause ofdue process the constitution as are tick ited by the supreme court in versus maryland and second the american bar association's rules of professional conduct. theseing to address separately beginning with the brady analysis. under brady, prosecutors are over allto turn favorable information that is material. the problem starts there. how do we define material. to decide whether something is to first you have decide whether it is relevant. havetermine relevance you to know the case, the whole case, and not just the case.ution's neary of the as justice stevens explains, quote, the significance much a piece of evidence can seldom be predicted accurately until the
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complete.ord is yet that is exactly what we expect prosecutors to do in applying materiality standards to pretrial without any sense of the perspective of the defendant. complicating the problem further, is the prosecutor's dual role. prosecutor is a minister of justice, but importantly a advocater is also an with the skills, the training and ability to effectively winecute cases and convictions. what is inherently difficult thet the prosecutor making materiality decision is that he cannot be neutral within this context. when deciding whether information is material or relevant, that is exactly what expected to do, to set aside their role as advocates, pour through the open mind,th an recognize the importance of the information to the defense, and an objective decision about whether or not to disclose it.
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are subject to what psychologists call confirmation bias. tend tons that we evaluate what we perceive in a way that is consistent with what believe.r a prosecutor with the responsibility of ultimately guilt, the defendant's in possession of police reports that support the defendant's will perceive his universe through this lens. and will tend to view in a way that is consistent with that belief that guilty.ndant is information inconsistent with that belief is likely to be viewed as not relevant. not relevant is not found material and therefore is defense.osed to the so even the best intention prosecutorsnd most are is not in a position to materialitydecide pretrial through the limited lens of the prosecution's theory.
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the ply ability of the standard applicationnsistent invite a kind of game machineship without regard to or innocence of the defendant. the dynamics and psychological pressures affecting the materiality decision is not limited to the prosecutor. kind of tunnel a vision or confirmation bias that cases. how they decide in 1985, u.s. supreme court justice harry black man acknowledged that, quote, the reviewing core faced with the todict of guilty, evidence support that verdict and pressure to finalize judgments position to better review the withheld evidence than the prosecutor. surprising that when the decisions we examine turned on the question of materiality, courts ruled in favor of the prosecutor 86% of
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time. we identified 210 decisions where favorable evidence was either withheld or disclosed late. those, courts found brady violations in 22 cases. the remaining 188 decisions the court decided testified was the lateial or disclosure did not materially prejudice the defendant. also found that courts apply the materiality standard inconsistently. did this by comparing cases the undisclosed information was similar in contexts that were similar or nearly identical and found that courts were inconsistent in how cases.led on those we also identify 65 decisions where prosecutors disclosed the information but disclosed it late. in 78% of the late disclosure cases, the prosecutor did not disclose the evidence until the
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way. was well under leaving virtually no time to make use of the evidence at to conduct an investigation that may have been revelation of the new information. despite the obvious prejudice to in this situation, courts found that the late disclosure violated the defendant's did you process rights in just one out of 65 cases. we also found that in some cases failed toecutors disclose favorable information, failure bysed the imposing a due diligence rule on the defendant, shifting attention away from the obligation to disclose favorable evidence to blaming the defendant's failure to discover the information on their own. and finally, turning our the courts role in promoting compliance with the a.d.a. rule, unfortunately i can be very brief.
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while courts sometimes encourage prosecutors to resolve doubtful questions in favor of disclosure, they almost never expressly point to the prosecution's duty and responsibility to disclose a they arevidence as required to do by our offession, by a.b.a. rules professional conduct. the podiumng to turn over to tiffany jocelyn, and for we're going to open up questions, and i'm going to coauthor, todd frees and tiffany to participate in questions.hose >> i'm going to give tiffany a more complete introduction if i may. colleague at nacdl where she serves as counsel for crime policy. she plays a key role in nacdl's and opposerevent overcriminallization, overfederallization, and the erosion of intent requirementings in criminal statutes. she has led numerous research
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nacdl and most notably she played a key role in an extraordinary collaboration between nacdl and the heritage coauthoredwhen she without intent, how congress is eroding the criminal intent requirement in federal law. so tiffany i'm going to ask you to pick up on where professor ridolfi left off and take us through some of the report's findings and recommendations as well. >> thank you, norman. would bebegin, i remiss if i didn't take a minute and say thank you to my coauthors. we'll hear from todd later, we just heard from cookie. a teamport was truly effort and i'm so proud and honored to have them by my side as well as the rest of this very distinguished panel. heard from cookie and as has been observed by many, the current perfect mutation of brady has become a
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defendant's the access to favorable information. this is in part because the odds defendant. the prosecutors who withhold favorable information overwhelmingly have that decision affirmed by courts. when undisclosed information surfaces, it is rare justice system to provide a remedy to the accused. my colleague just discussed there are several disturbing issues that arise in brady jurisprudence that can effectively relieve prosecutors their disclosure obligationings and deprive defendants from access to information. for example, courts frequently impose a due diligence defendant. on the if the defendant could have found testified on his own then there is no brady violation. strict reading of brady, prosecutors can disclose very without the risk of upsetting a conviction.
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unnoticed.t gone disclosure of all favorable information is not the policy of justice, fort of example. adherence toal brady's materiality standard without regard to the integrity become aocess has direct endorsement of nondisclosure of favorable information. found, what our study that is what our study supports. that is why this problem must be addressed on the front end. the brady standard used by courts following a conviction is not the rule by which prosecutors should measure their disclosure obligations in advance of a trial. requiringstandard disclosure of all favorable information, accompanied by for noncompliance, must be established. this sort of front end reform can be accomplished through passage at the state and the levels of a statute consistent with the a.b.a. model
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3.8d that my colleague described. this requires amongst other things disclosure of all favorable information. this reform could also be judiciaryed by the through changes to judicial rules and it can be accomplished judges andal individual defense attorneys through the request in granting to disclose all favorable information. so let's discuss these mechanisms for reform a bit more. ethical rule. this is one way that defense attorneys and judges can actually obtain immediate a particular criminal proceeding. while simultaneously encouraging changes in disclosure practices. defense attorneys, and i know in thise many of you room, defense attorneys should request an order from the judge in every case requiring prosecutors to abide by rule 3.8d. and that order should also set
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toth sanctions for failure comply. this is a direct mechanism for way tong reform, and a counter the problems that have been identify in our study. the presumption that most lawyers will comply with orders creates a reasonable probability that widespread use could have a effect on willful nondisclosure. is notse, this approach a magic bullet. it will not solve the problem. effectivenesss will still hinge on the willingness of courts to enforce the order. a proven unwillingness of courts to reverse convictions, can only wonder about their willingness to hold prosecutors in contempt. bring mess to a judicial rule change, another mechanism for reform discussed in the report. this is the type of reform that would address the arbitrary evidenced by the study. nationwide, judicial branches
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positioned to take action to improve defendants' information.orable by amending core rules and policies to establish clear and guidelines that track model rule 3.8d, the judiciary could decrease discovery games manship and help restore balance to our justice system. in fact, some federal judges have already been calling for sort of reform to the federal rule, rule 16 of the criminal rules of federal procedure. like necdl, they have pushed unsuccessfully thus far to remove the materiality limitation from rule 16. the findings of the study lend evidence to what these supporters have been saying. standardiality disincentivizes the disclosure of favorable information. changes at the state and federal levels would culture ofpromote a compliance. of course the most important and
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and most effective mechanism for reform of prosecutorial disclosure would come through legislation. legislation that sets forth a for disclosure of favorable information. as well as establishes rules for the disclosure process. such legislation would have a impact.ide of fairness and disclosure evidence act of 2012 exemplifies thisort of reform that study demonstrates is critically needed. flawedct response to the prosecution of the late senator ted stevens, senators murder ski -- inou,rs murkows ki and and others introduced the fairness and disclosure of in 2012.act they did this to provide clear
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meaningful standards to govern the prosecution's disclosure obligations. these senators saw what happened to their colleague and had the courage of their convictions to action. this act, the fairness and disclosure of evidence act, prosecutors to disclose all information that may reasonably appear favorable defendant. effectively prohibiting the government from using brady's materiality standard to limit its disclosure obligation. the favorability of information trigger what would disclosure obligation. it does provide for exceptions where disclosure could be did itry mental to witness safety, and the act also includes a mechanism for seeking a protective order and exempt information from disclosure. if legislation like this were defendants would have increased access to favorable
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information and that would lit gaig system wide. the enactment of this legislation would also address by ourblems evidenced study and discussed in our report including the common practice of late disclosure, the due diligence, and whichequency with incentive deal information is not disclosed. wouldming provisions require disclosure before the entry of any guilty plea, there some of the pressure on innocent defendants. the weight of legislative action greater than any other mechanism. it is an enforceable message fair disclosure is fair --e quis it to requisite to fair process. bringingmodel for about sensible reform through legislation. ensuring that compliance would remove much of the games manship the is common place in discovery process and would result in less lit baition and a
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fairer process. unfortunately, politics got in the way of fairness disclosure of 2012, it was not passed, nor was it reintroduced in the current congress. is sitting on a cutting room floor, waiting for another group of legislative and picksome back it -- pick it up and move it over the finish line. legislation need not only take place on the federal level. federal action may be stalled now, but state legislators poised to country are take this reform legislation and their ownw in jurisdictions. the courts reliance on as a central inquiry and a brady violation claim has standard by the which prosecutors measure their disclosure obligationings. materiality standard is removed as a barrier to fair are reale and there consequences for withholding
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favorable information, the will remain unaccountable to defendants. this issue,rity to to provide prosecutors and courts with clear guidance, and that those facing criminal charges are accorded the rights that they deserve, there needs to be reform. thank you very much. >> thank you very much, tiffany. before i introduce our next introducedo want to todd frees, he's a research attorney at the veritas initiative at the santa clara andersity scal of law operations direct for for the northern california innocence project. he focuses on promoting policies, to help prevent wrongful conviction and todd questions later in the program. our next panelist will bring the practitionerf a and former government official who attempted to tackle the issue of fair disclosure. w. ohing again is --
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governmentair of the and regulatory litigation group. decade asthan three an experienced counselor and litigator he focuses his withice on disputes complex policy dimensions. inasserts several stints government including serving as legal counsel at the united states department of defense, chief of staff and counsel to general janety reno. assistant attorney general for the civil division. and most deputy attorney general of the united states. while in that position in 2010, he issued a ran department -- known by many as the ogden memo, taken in response to a working group that was convened after dismissal after charges against the late senator ted stevens, the dismissal which followed the disclosureof serious violation business the prosecutors in that case. mr. ogdenored that
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a forward.itten ogden. >> thank you, norm. i feel very honored to have been asked to do it. i'm really here because i think the authors and the organizations, necdl and veritas and the foundation for criminal justice, are to be commended for is a set of data subject that is extraordinarily important and difficult. to not in a position specifically endorse the recommendations. i think they're serious recommendations. but i do think this makes, this
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greatmakes a contribution. i do have the perspective of issuesdealt with these on the outside as defense dealel, as having tried to with them, as i think norm accurately described my effort as deputy attorney general when foundational some and fundamental issues in the wake of the stevens prosecution. the subject is important because it relates to the most fundamental criminal justice all, the guilt or innocence of the accused. whether, when and how the shares information with the defense also goes ourctly to the integrity of legal system, the participants in it, and our institutions of justice. defense counsel have limited discovery tools at their typical casein a often have very limited resources to conduct their own investigations. for whateverution reason fails to disclose
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information favorable to the may well mean that it never comes to light. no greater marm can be done by justice system than conviction of innocent people. thehe rules that govern obligations disclosed are very mechanisms toare oversee and enforce them. the subject is not only alsotant but it is difficult. certainly material that is accused or of the undermines the credibility of a prosecution witness must be disclosed. for information of more questionable apparent significance, many believe it's prosecutors to compete -- the concerns include the harmtial of harassment or to witnesses, the integrity of investigations. is actuallyrmation favorable to the accused may be difficult to assess, and may
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some extent on the eye of the beholder, and the ways in which it might be used. so where disclosure of more favorable information would significant marm in these areas, i think one may it makes senser to mandate it. that's what makes it hard. so the newly leadership of the department of justice of which i was then a part, tried to chart a new course. justttorney general had made a difficult decision to abandon the failed senator ted stevens prosecution, which had had been plagued by and destroyed by violation of the brady doctrine. as deputy attorney general late in the spring i put together a broad working group and directed them to under take a thorough review of the departments policies, practices and training related to criminal case management and discovery and to areas for improvement. early in 2010 based on the work
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implementedp we changes in department policy meant to provide direction and resources to prosecutors in obligations tor disclose favorable information. for no claim to perfection that work product or any other product. but here's what we did. we set forth structured to gather, review, disclose and make a record of information, potentially favorable to the aaccused. a comprehensive gathering, a comprehensive review and a timely and appropriate disclosure, and record keeping understanding of what had had been done. direction also to remain vigilant throughout the case to obligate disclosures on an ongoing basis. we establish a new training protocol. and provide a dedicated , to assisthat
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prosecutors. we also reminded prosecutors that when disclosure obligations are not clear or when other competing considerations seem to against disclosure, prosecutors may seek a protective order from the court timing andthe scope, form of disclosures, and that specific direction was given. the federal prosecutor's duty is to seek justice, and spoke about the truth seeking role of the prosecutor. the government wins its point when ever justice is done and citizens in the courts and we stated that providing broad and early discovery often promotes the truth seeking mission of the and foster is a speedy resolution in many cases. it also provides a margin of error. encourage prosecutors therefore to provide broad and with discovery consistent any counterveiling considerations.
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i believe today as i did then panelthink others on the believe that prosecutors try hard to live up to those standards, most of them. course they do have a dual role. though they are ultimately and theof justice truth, that's their ultimate mission, they are of course tasked as a primary matter with seeking convictionings of those they believe are guilty. an obviouslyle very important function, does affect the lenses or the prism which they see issues. advocates pursuing a val i goal through to view things a particular lens. we tried by the steps we took to provide assistance to them, to prosecutors in making that decision accurately and i thinkg objective, and we need to take very seriously and insist upon prosecutors obligationings to make utmost efforts to maintain their objectivity and to protect the as tenaciously as they seek to convict the guilty. is given the dual role it unquestionably the case that
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given prosecutors dual role have an obligation to guarantees system's of fairness. is nothe stakes, there more important judicial role. so we should continue to focus shape of the legal rules that govern the process and the role of the courts in overseeing prosecutors fulfill their obligationings, it's essential, and that's why i makes athis paper significant contribution. you. >> thank you, for vindicating my ofisions as to the order speaking, because your final toments are a perfect segue obtain a judicial perspective. our final speaker is alex kaczynski. he appointed by president reagan in 1985 making him at that time
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u.s. court of appeals judge in the country. romania whereom he came to the united states when he was 12 years old. quite an american tale. prior to serving on the court of clerked for justice anthony kennedy when he was judge on the 9th circuit and for supreme court chief justice warren burger. during his time on the court of appeals he has seen just about judgehing an appellate can see. in 2013, in the case of united judge against olson, kaczynski issued a powerful dissent, unfortunately it was a in which he wrote, and an epidemic ofis land,violations abroad in only judges can put a stop to it. hethis dissenting opinion not only identified dozens of examples in which fair
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disclosure was thwarted, he also trained his keen analysis on the very subject of this report materiality standard. judge kaczynski. >> thank you, norman. afternoon. i'm going to spend a couple minutes talking about brady. we all know that brady is a rule that the supreme court has adopted. it except for those, and think americans who actually law, it'sriminal probably hard to understand how brady differs in many ways from why it's such a bed ofk important principle criminal justice. there civil cases where is some mutual discovery, full discovery, and the transaction is in some ways open, the
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investigations are such that the prosecution has a huge advantage. it's a physical crime, and the like,y, police secure the scene, they talk to all the witnesses. if there is evidence to be picked up, they take it, and by the defendant or his investigator comes around up.e's nothing left to pick usually. the prosecution is able to force to talk, or at least take the fifth. immunity.ble to give they are able to seize records, bank records and the like. it is not a physical crime, if it's kind of white color crime, they can conduct an investigation for years without the defendant even knowing about statements,vidence, so on, and the defendant may have no clue that this is going or very little information
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about it. not a situation of some abstract rule that the be fair.on should it is a fact that there's only case,h evidence in a there's only so much of witnesses or facts are or pieces of evidence that can be presented to the jury, and most thet is picked up by prosecution. it's just the way our system works, it's the only way the the supreme. so court in brady said to be fair can't have a fair trial in a criminal case if one marbles.all the we learned that as kid and we understand that as a principle cannot havethat you a fair contest, you cannot have one sidedo its work if can decide what to present. that is is a reality often pushed to the back,
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overlooked. and the report, which is a very i think iseport, well worth reading, considering, taking into account. but to me it's not a surprise at all. the nature ofs violations. once evidence has not been the defense and doesn't come in, and you get a the all the momentum of the process is to uphold the conviction. you have then had an expensive judicialu've spent time, you have taken 12 or 14 or 16 people from the community, depending on how large the jury panel is and kept them there for on end, sometimes weeks and they have come up with a judgment that this person is guilty.
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incentives that we have in our system, all of the rules that we have before presumesn that rice all thoses things are reversed. is that the judicial preserving thepreserving jury's verdict. in manya good thing ways, because after all we in america believe in juries. that when a group of people from the community are drawn and they make a decision or innocence, that standing, significant that is something that ought not to be set aside. faithwould suggest that in the jury requires more than simplyt requires not respecting the jury's verdict. but also respecting the jury enough to present them with
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evidence that points to both innocence. if there is such evidence. and part of what goes on in cases, and this has been discussed by professor ridolfi other speakers today, what happens in criminal cases, this i not in most criminal cases believe prosecutors are not bad people by and large. ones i've seen have been quite honorable and very job. and want to do a good but once the investigation starts focusing on a single individual or a group of individuals and they have a theory of the case, they simply looking for evidence pointing the other way. they become desensitized to that might prove the guilt of somebody else or prove dispute thee or guilt of the person that's being accused. on. put blinders and these are not evil people, tose are not people who want convict somebody who is guilty. they want to convict somebody
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guilty, but they don't want to convict somebody who is innocent. they believe this person is therefore they look at the evidence with a, with this filter in mind. so i believe that putting this prosecutors to come up with evidence that both is and is material, i an impossibles burden. ery're just, it's not that their job. they're advocates. they want to win, they do want but they believe doing justice is by convicting dayperson or personses believe are guilty. so many of the suggestions made for reform have been welcome and i any would be a step in the right direction. fairness in evidence and disclosure act is a good idea and should have been passed by after the debacle of the
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stevens prosecution, which not can be said about how bad that situation was. enough, because the stille is passed would put the prosecutor's outonsibility to winnow evidence that they believe is exculpatory. again, as professor ridolfi pointed out, at that an adversary not process. there's no one there telling the but look at this from the perspective of the defendant, look at the evidence, evidence that of looks innocuous to you, here's a good defense lawyer could do with it. it's not there. so i would favor, and i'm for myself, but i served as a court of appeals judge, i have served as, i do district court trials, i've
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trials, i've taken verdicts and convicted peel on bench trials, i have served on criminal juries, i been in they process. i know what a little bit of evidence, just one piece of seemnce that may insignificant, can do when you're sitting around a table like that with eleven other people and you're discussing a case. evidence canece of flip the discussion. is that what is really needed, if you want to is to have any, open disclosure policy. it is a prosecutor's file, it ought to be presented to the defense. security, national those kind of exceptions, which judge. submitted to the prosecutors by the
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has been, the in theng the debacle lacrosse state in northbound and is being tried in the great state of texas following the michael moore trial and i think it well worth considering on a nationwide business and the federal system. any talk, if i have a couple more minutes, about the victims of brady violations, the ones we have about, but the ones thinke think we need to very seriously about, because every time an innocent person is convicted it means that a large.l remains at every time you convict somebody crime, it do the means that the person that did
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andcrime is still out there can do it again. let me give as an example the case of michael moore. everybody here is familiar with forbut let me repeat it those who might not remember. michael morton was the man who was convict for the 1986 killing and beating of his own wife. served 25 years in prison, focused on police him, it was easy, it was his own and because the name ofor, a man by the an anderson, lied, lied to judge and lied about the heulpatory evidence that had. years later through the work of othernocence project and fine lawyers, and over the therous objections of prosecutor that then succeeded
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namenderson, a man by the it hereme see, i have in the notes somewhere. bradley. that's his name. and i mention these names people ought these to be ashame of themselves, and i think they ought to feel ashamed of their community. ken anderson went onto become, attorney, a district became a judge, and then for court and cost a got,5 years in prison, served five years in jail, lost his license. say five years? excuse me. five days in jail. never apologized. never apologized. sorry, i feelm responsible for having cost inther human being 25 years
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prison. obviously he can sleep well with on his conscience. , his successor who stone walled for six years to from beingidence disclosed, the d.n.a. evidence tested, fought it in court, he was defeated at the polls. apologized either. he says he made the right decision given the facts available. shameful. they ought to be ashamed of themselves for having systempated in a justice that committed these crimes. now, the victims, the other of this crime are the who areut there victimized by the criminals who not caught and jailed because the police and prosecutors picked the wrong man. now, in the case of morton,
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the name of ken convicted of kill.orton's evidence, and. other evidence. i will not prejudge it. but i do want to say that there evidence that he committed another crime in 1988, two years after the morton crime. and perhaps we can think about had theibility that police not focused on morton, had they disclosed to the defense the evidence of the policehen maybe would have looked at the evidence they had, examed --
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examined it more careful my, maybe focused on the person we in know is the real killer the morton case, which is ke ken and perhaps perhaps the otherinvolving the baker, thenrah deborah baker might an live today. again andappened again across the country, in somebody getsre and it's the wrong person. let me leave you with one final thought. d.n.a. has opinion quite a boon ways.y not only in freeing people who guilty who are convicted and beennnocent, but also it's a great boon in giving us an
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insight into the flaws of our criminal justice system. for 600 years we've had a common law system where we present ofdence and we have a burden proof on the prosecution, we have the presumption of innocence, we have giment beyond reasonable doubt. and we are taught as lawyers and we believe as society that that justice. we say it is better for nine walk free or 10 gilly men to walk free than for one innocent person to be convicted. but we have no evidence that that is what's happening in our courtrooms. it is religion. we have not had any proof as to what actually happens is that few if any or no innocent people convicted. d.n.a. has given us a rare glimpse into that process, has done, itit lets us go back and look at past
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convictions that were obtained before d.n.a. was a factor, and lets us actually find people who we now know didn't do it. give us anould insight as to what went wrong in the process. be an impetusd for us to change what went wrong. these people get convicted? because in window is going to close. get convicted again where d.n.a. evidence is exculpatory. so this is a rare opportunity us to go back and recalibrate our criminal justice in light of hard evidence that really there are people didn't do it. who it's a sobering thought. to theld shake all of us roots, all of us are involved in criminal justice, to think that in fact our system, the best theinal justice system in world, the system that gives us
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guilt beyond a reasonable doubt lets 10 guilty men walk free rather than let one innocent areon be convicted, that we actually routinely convicting people who are not guilty. this is ams to me chal theang must take seriously. we must look at cases where are exonerations by d.n.a. and what's more the spectacle that happened in the michael morton case, where they the evidence and it took six anrs, six years to obtain order allowing the testing, opposed tooth and nail by the prosecutor's office, that should not happen. that should not happen. d.n.a. evidence in a small personal of case where is there is d.n.a. evidence, be routine.ld whether there was a claim of innocence or not, testing should
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routine. whether there was a time or a guilty plea. all know people plead guilty all the time and turn out innocent. and this resistance the entirelyrs have is unjustified, saying we're not going to test for d.n.a. evidence. unjustifiable. the people who need to do it, the legislature would be good, to do that.ave in michael morton's case, no happened until an it done. panel ordered and that broke loose the flood gates and not only did it free it also put ken his justehind bars for conviction. it seems to me there is no no moraltion, there is or legal justification for d.n.a.tors to oppose testing. i think that any who do should
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for their doing so. it seems to me that this is prosecutors should welcome, because if they, god forbid, have helped convict the they should be grateful for the opportunity to set the report straight, free an innocent person, and then go find the guilty one. thank you very much. >> thank you, judge. we are going to have some time for questions now. i just want to follow up with judge just said by of werse, all the great lessons can learn from d.n.a. we have to learn, but i just want to underscore that in all those cases which don have buy land cal evidence, which includes virtually every single case in the question of guilt or innocence turns on intent, it's critical that this favorable evidence be put into we hands of those people who are respecting and who we are asking to make these decisions.
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to lead off with a very quick question which i want to.ut to todd study of arandomized number of cases, fear cases, but involved state cases for the most part. could you just explain that for need the context to understand that? study included a random sample of 1,497 decisions federal courts over a five-year time perfect from to july 1, 2012. all the decisions in the study werefrom cases that litigated in federal court, the origin of these cases, not solelys was limited to federal cases. the procedural posture of these cases included federal appeals, post trial motions and haibious petitions. while the federal appeals and post trial motions were limited
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originated cases, habeus petitions can be filed in courts. federal but before a state petitioner can file a habeus in a federal court, all state options must be exhausted first. so the state originated decisions that we saw study were exclusively habeus petitions in which all had beenedies exhausted and the petitioner was now seeking a remedy in state court. the overwhelming majority of decisions that we saw in the study were habeus petitions and appeals. the fact that we have both federal and state originated the study means that the trend that we see operating in the study sample not, are by no means limited to just federal cases. >> of course i means that those are litigating initially in a state case never side.lief on the state i'd like to direct a question to ask david, and i'm going to you for the purpose of this
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from youro look at it defense lawyer perspective. astonishingeally findings was that in 64 out of with latees disclosure there was no relief granted. have thatrse when you kind of case law, you also have lawyers who are probably bother toot even to try to litigate late disclosure. i venture to say that anybody that's tried a reasonable number of cases has probably routinely of latered the problem disclosure. i want dorr if you -- could explainu why late disclosure is not a substitute for timely disclosure. in other words frshes the defense perspective, why is it important that you get this a timely way? >> sure. critical to noib has ever tried to prepare anything, that the ingredients to the thing you're preparing to be there before you create it. and putting on a defense is no
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different than that. time you need information in order to investigate it in advance of the up on you need to follow the information. and to develop your defense. you need to figure out what theory of defense you're going to have. and you can do that unless you information. to evaluate the strengths and case.sses of your obviously if you get the information well into a trial or ity on the eve of trial when could have been disclosed earlier, you're profoundly handicapped in your ability to all those things, so timely disclosure is absolutely critical. going to encourage anybody who has questions to go over and line up at the mic. you want to direct a judge.n to you, it's a two-part question and ind of a tough one at this, suppose. i'm going to take advantage of my opportunity. saidur olson dissent, you that the panel's decision, and i
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quote, effectively announces prosecution need not produce ebbs peculiar paer to or impeaching evidence so long as possible the defendant would have been convicted any way. and of course what you were at was major impeachment evidence a key witness that had never been disclosed. you've already, in your talk, importance the really of giving, the real loser here is the jury that doesn't that might something affect a juror's determination as to whether or not to believe witness. so my fundamental question is, then that, what is reluctance that courts have to reverse these convictions? isn't it likely that if there were a pattern of that would be the imagine nabl?e reversals would be a good start.
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under the -- standard and it one of those steps in the process that we to take. whether something is material, whether something is presently a question highly of judgment. look at the situation you know, guys probably guilty, jury found him guilty, most criminal defendants being guilty, certainly the one west see on appeal are and so there's a great deal of inertia. and for reasons i find hard to areain, most judges case ast to use any one a way of teaching cases.nity for future
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i don't share that view, but colleagues with equal level of experience to more years, and maybe they are right and i'm wrong. perfectlyit seems obvious that if you create, economics my background, but it seems if youly obvious that reward stone walling, you'll get more stone walling, there's just no two ways about it. >> i'm going to ask one of the authors to respond to this question, which everyone of you wants to jump in. cases were randomly selected. but by chance, you reviewed two cases that involved undisclosed information that concerned the same central witness as in the prosecution of senator stevens witness about whom the government in that case failed
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conduct that prior directly affected his credibility and a similar took place in these other cases. so i'm going to ask one of to you comment on what you learned studying the cases of peter cotton and victor cory. question.ke this in your report you'll see on page 16 and 17 there's a these twoomparison of decisions and it's interesting, because while our study sample we happened to end up with a district court decision in one of these cases and a 9th circuit court of appeals decision in another. so we got to review them at different stages even though they took the same path. as norman said, the witness at issue here was the same witness case, and in that case the department of justice ultimately decided to drop the prosecution, and yet here we two defendants who had the same undisclosed information
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the same key government witness that were forced to pursue an appeal all the way up to the 9th circuit. stevens, perhaps because there wasn't as much pressure or press, these defendants got treatment. and really what these two decisions show us, not only is of theitrary nature materiality standard, you have essentially identical facts and two different courts come out differently. theeven more so, you see disparate treatment that defendants get, under brady. you could view a defendant in one district and maybe the fine,utors say, okay, we're going to lose if we keep letting you challenge >> one thing that i don't know if she if she mentioned this,
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but all three cases involve essentially the same cases which were public corruption charges. contexts were with similar. >> question from the audience. >> thank you for this important information and for the suggestions that is you put forward. i would like to ask the judge, with your open file system do you see any problems where there is a bechblnch trial and how would you benefit those if you can see any? if i can ask, why isn't a continuance a good enough remedy for late disclosure? >> the problem of bench trials applies across the board. the judge has to rule on evidence and ignore himself, if it is a strike evidence and ignore it. i don't see it as a problem. the reality is most of the
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cases are jury trials. i can't emphasize enough the importance of judicial intervention and judicial activity or supervision. what happened, the difference between what happened here and in the ninth circuit case is he district judge. solomon took it seriously. you would think, you would think that once there is a disclosure as happened in the stevens case where somebody on the prosecution team blew the whistle, i mean, said they have been withholding evidence, you would think the justice department would slink away in shame and withdraw the prosecution or move the government for setting aside the conviction. no, they fought it tooth and nail. they fought it tooth and nail.
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what happened was judge solomon who is an excellent judge with a sense of honor, duty, and the constitution. he put down his foot and said, no, we are going to look into this. that was the difference. the ninth circuit it took getting up to the court of appeals. you cannot get around the need or judicial supervision. or understate the importance of judges taking this seriously. if judges take it seriously, prosecutors will take it seriously. >> part two of the question. on the continuance issue, why isn't that good enough when it is a late disclosure? >> it could be and it seems the minimum thing that at the trial level a court should do in that situation is to assess whether a continuance would help and certainly could be lenient in
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that situation in affording defense counsel time to respond. but there are circumstances in which the defense made certain decisions it's hard to back away from and the process is oo far down the track. if opening statements have been made and the like, it comes late in the day to have a continuance. there is a big investment in the criminal process. try to salvage it. fairness really does require a hard assessment as to whether an error by the prosecution to problem. i agree with the judge. i think judicial supervision is extremely important and the
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message will be sent that there will be active superintendents. i do think that brings about a process and forces prosecutorses to do their duty, which is what this is about. >> i think it reflects this is really a trial tactic on the part of prosecutors. i think that's the bottom line. >> we actually did see quite a few cases. one of the problems is it can disrupt the flow of the case. it can be a risk. we also saw a number of cases where if defense counsel failed to ask for a continuance, the court assumed it wouldn't have made a difference in the case. >> thank you. next question. >> thank you very much.
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i want to acknowledge the judge. you were spot on when you said the prosecutor should be shamed in the morton case. my question is i'm interested in learning about the incentives that prosecutors have to not try to pursue further evidence in a case. we have seen particular cases like michael morton where there's a judge that could lose his license and lose his standing in the community. we saw it happen with the central park five where all of the people who prosecuted this case made their way up the chains in new york city and no one wanted to say the kids were innocent. i'm curious about the incentives and if you talk in your report and you can answers this -- talked about incentives
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prosecutors receive in terms of prosecuting a case to the nth degree knowing this person is, in fact, probably not guilty. so incentives in terms of monetary incentives to have more and more cases prosecuted coming through the office, them able to hold up a pamphlet saying look how many people i have prosecuted, if you discussed that in your report. >> no. we didn't discuss it this the report. certainly if anyone wants to comment on that, feel free. >> the incentives aren't evident in the discussion of the cases which is why this is an academic report. we didn't go into anything like that. >> i do want to make it clear i don't think there are any prosecutors out there or indeed very, very rare who say the guy is innocent, i'm going to get him convicted anyway. i don't think that's how it
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happens. they are convinced they are guilty and there is a piece of evidence that doesn't fit. goes the other way. a witness who said the guy has a beard or the guy was 6'0" and the guy is 5'3". it doesn't fit. the prosecutor says, you know, the guy is clearly guilty, i have this stack of evidence, and there is a piece of evidence, nobody will believe it anyway. they want to sweep it under the rug, not to convict an innocent person, but to convict a person they believe is guilty. the problem is this is their job thinking people are guilty. it is not their job to see the holes in the cheese. they have to look at the cheese. they are there to see the guilt beyond a reasonable doubt, not the reasonable doubt that defeats guilt.
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that is how it happens. they want and believe if they let this piece of evidence and hand it over to the schyster defense lawyers they will make something of it and fool the jury into acquitting an innocent person. it shows a lack of faith in our jury system. it is contempt for the ury. the jury is us. it shows contempt for us as a society. >> president simon? > thanks to the panelists. you spoke about brady and you spoke about the harmless error rule. and my question to you, as we all know and as the report reveals it's very rare after an identification of a brady problem that results in reversal largely because the harmless error rule is a hurdle
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that the defendant must get over. so my question to you is, would it be wise or interesting or prudent to create a rule that when there's a brady violation it will be examined on its own, divorced from the harmless error rule? and if there is such a violation it will result in reversal? not only will this help identify brady violations and create an incentive for the trial courts and prosecutors to comply, it also would help on appeal. so it wouldn't just be an appellate save. it would tell prosecutors if you commit a violation, you're not going to be able to rely on the harmless error rule to escape responsibility. a he supreme court has short list of structural errors, errors that if you commit them the appeal is over, you have to retry the case.
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a biased judge. there's a very short list. and the court has been exceedingly reluctant to add to the list. i would be very surprised if the supreme court were to add brady violations to the list. it could be done legislatively. and i'm not going to say whether it's wise or not to do that legislatively. it certainly would create the right kind of incentives. i think it is better to adopt a le that forces disclosure up front. at a time when the trial hasn't been run, the jury hasn't been impanled, there's no judgment. to take judicial time has not been wasted in trying a case and they have to be retried, and letting the adversary process, in which we believe gives the evidence the prosecution has, whatever they have in their file, give it to the defense, and then let the jury decide. if it's good, it's bad -- this is why we have lawyers and this is why we have trials.
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creating another structural error that is beyond reach of harmless error analysis, that's probably a bridge too far for me. i certainly have no authority to adopt anything like that. maybe the supreme court. >> thank you. >> on that point, the fairness and disclosure of evidence act establishes a standard, one of the provisions i believe is harmless beyond a reasonable doubt is the standard appellate courts should use when reviewing such claims. >> we have time for two more questions. i think we have two more questioners. so that's perfect. >> thank you so much for your panel today and the important work that you did in this amazing report. i guess i'm going to ask the question on behalf of all the solo cja panel lawyers that are out there. and in 2014 we're faced with
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ses of a tera byte, 500 giga bytes of information. cell phone towers, g.p.s. tracking, thousands and thousands of pages of documents. so even if you have an open policy and you get from the government all of this discovery on a one tera byte of hard drive and you have a very short period of time to file your motions, what do you do? how do we prevent brady material from not being disclosed under those very, very difficult circumstances? >> who wants to take a shot at that? i think the gist of that question is if the government doesn't affirmtively identify it and they simply say we gave it to you, it was there. how do we deal with that? >> i don't have a great answer to the question. i think it is a big challenge that is sort of the flip side of any sort of open discovery or kind of open file discovery,
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is that it puts the burden on the person receiving the material to figure out what's in there. i do think there is a flip of it that doesn't answer the question but i do think it's an important perspective on some of the challenges which is that very data point creates challenges for the prosecution as well. one of the challenges that i think is presented by the enormous volume of information that can be collected in a case by investigative agents is that it is very hard to review it all, consider it all, think about it all, and prosecutors like any of us trying to get a job done are making pragmatic decisions about what to ry view and when they have enough and when they can stop looking at it. so i think part of the problem isn't even the cynical sort of explanation being given, which i think is doubtless true in some cases, but i think sometimes mistakes simply come because the material isn't discovered because prosecutors don't have time. and the flip of what you're talking about is the serious
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issue, and we're all drowning in date avement >> we get this huge almost unuseable indexes, it's almost like a needle in a hey stack. so it's a challenge until there's a rule change so many of us are struggling because we know when you read the rob carey's book and you find you have the best lawyers in the country that are filing all these motion force discovery and motions to compel, eat sell ra, what do we do? how do we combat that? it's a very difficult time. >> i just want to point out, an index should never be enough. it's true there maybe more information than a prosecutor has the time to discover themselves. but once a prosecutor gets into the case and does delve into those areas, at that point the information should be discoverable. >> time for two more very quick ones. >> the problem -- i just participated in a civil discovery conference just last week. my understanding -- and this is
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a big problem in civil cases. the problem is it's not as serious as it first appears. because for one thing once you turn data over, if you don't know what's in it it could be anything at all to destroy your case. so people are becoming much more reluctant to do data dumps. but it seems to me in criminal cases the thing that is you really want to look at are the investigative reports and those are not going to be subject to a data dump. you're going to want to read every one of those. and that will give you keys to other evidence. but the subtrfuge usually turns up in a report of the witness said the opposite. what happened in the meantime? he got a plea bargain. >> i want to thank you for your report as well. i think everybody in the room agrees that what you've done is a tremendous service to those of us who have prosecutors telling us that they never see anything like brady that's
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exculpatory. and often don't produce it, and sometimes it's discovered years later. in response to the last question, the thing about the new technological data dump, the way to deal with it is not to rely on the government organizing it for you. that you have to scan it, digit lies it, and then use a program like dt search.com to do your own searches. but my question is about the disclosure that i think is the critical thing that you want. and anybody who has practiced in any court for any period of time in almost every other case has had evidence withheld from them. and so we reach a point where we don't know if we have the honest prosecutor who cares to put aside his adversarial role to actually do justice in a case. so the open disclosure is the only one. what i wanted to ask your honor is if we amended that fairness
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act and called it the open discovery act would yo go up on the hill and testify before the judiciary can he to say that's what we need? because you did say it's an epidemic. >> as i have been known to say in other context i can't speak for the judiciary and only the judicial council of the united states. if there was a vote to support it and the chief justice appointed me to speak, i would be willing to speak. >> not even as an expert opinion? >> i would say that if subpoenaed by a committee of congress i would appear. >> not going to claim judicial immunity. > thank you, your honor. >> thank you. good afternoon. thank you for your report. in listening to this my question is not going to be as technical. the average defendant is not necessarily mr. stevens or a banker or something of that nature. your average defendant is low income, minority, maybe a drug
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charge. so my question is, the work that's being rolled out today for your viewers and listeners in layman's terms how can the person listening wrap their mind around it? how will this affect that average case where they may not see a public defender until they go to o court and what's redacted is the history of a police office center so not just talking about the prosecutors but the officers and the whole process. >> todd do you want to take a shot at that one? >> sure. if you read the report we try to make it as simple as possible so that the lay person could understand exactly what we're trying to say here. -- the findings are that there's a number of cases where favorable information is being withheld. 210 out of 620 cases or decisions. now, those decisions are not limited to michael morton type
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cases or ted stevens type cases. the crimes in these cases run the gamut from small petty drug charges to serious murder charges. so the findings really speak to every single type of crime every single type of defendant. >> thank you. >> in the introduction of the report you'll see that we talked about three different cases. thompson in louisiana was the third one. and different scenarios, different socio economic status. and i do think that the report shows this problem knows no bounds in that regard. federal, state, race, all of that. but i think that the key to take away from this for the defendant who is about to get their attorney is to say, the government must disclose all favorable information. and i want to make sure that my lawyer is asking for it.
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but not just asking for it. going to the judge and getting the judge to order it. i think that's key. until we can get legislation, that's what the individual defendant should take away from this. >> thank you. >> one thing, i think this is an incredibly important reality to focus on. that in these cases where defense counsel has got the least resources are the cases where it is the most compellingly important that we have the highest degree of fairness and disclosure by the prosecutors. it is essential because in that situation the deck is stacked in a way that it isn't anywhere else. and it seems to me that the fear that one has is that it is exactly in that situation where scrutiny is the least likely and therefore injustice is the most likely. so i thank you for the question. i think it's very important. >> so i want to wrap this up one observation, which is i started by trying to give the disclosure issue some context. i think some other context is that this is a nation that has
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2.1 million people in prison and arrests 14 million people a year. how our criminal justice process unfolds and whether or not we give those who are accused the opportunity to know the evidence that supports their innocence, supports mitigation, or undermines the reliability or truthfulness of witnesses is essential and is something that has to effect as the last gentleman said, this is something that affects literally millions of americans. we can talk about a case like morton, which was anything but a white collar case, but because of the circumstances it has become a major teaching moment. we can talk about the stevens case because it was a united states senator who was done in by a justice department of his own party who had nothing at all to gain. it actually tipped the balance of power. and it shows you that we're dealing with a systemic problem and it requires a systemic
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solution. so with that i want to extend my congratulations and thanks to the three authors i know first hand how hard they worked on this from the very earliest days of devising the methodology and trying to figure out how to make this work and produce something that can advance the public discussion and of course to david ogden for his generosity and reading the report, commenting on the report, and then write writing the forward. and then judge cazz inski for lending his eloquence and stature to this discussion today. thank you all very much. [applause]
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[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]
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>> a group of major world powers has been negotiating with iran on a final fluke clear agreement since last january. they're now facing a november 24th deadline. next, a discussion on iran's nuclear program and the ongoing p 5 plus 1 negotiations. the wilson center hosted this hour and 15 minute event.
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good afternoon. i'm jane harman. >> i especially want to recognize michael's sister ellen, his brother-in-law barry, and his girlfriend ira, who traveled from germany to stay here. a few weeks before michael died, andrew seeley and i went to have breakfast with him in his georgetown home. though he was clearly ill, his eyes gleamed. he had on a starched shirt, and he served as a full breakfast, a little bit of which he ate. he was optimistic about the future. that is how i think we should emember him.
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whatever happens and we hit the november 24 deadline for the iran nuclear deal, some of my own interested in it has dimmed, because michael won't be telling me about it and because i won't be able to share his excitement. the wilson center has had many scholars, and has many, but whether because of his talent, his personality, or the incredible impact of his expertise, michael stood out. we honor his legacy today. more specifically, we wanted to o something else, so we will be putting up a plaque to the library where michael spent countless hours, to commemorate more permanently his contributions to the center and to his beloved subject, the iran nuclear deal. there is also a picture of michael hanging in the library,
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located in the gallery to the left of the library entrance. staff will be on hand to direct ou to the space. we have the perfect panel here oday to celebrate michael. rob, the vice president for scholars, and one of our featured panelists, will say more about mark and david in a moment. but i will say that, yeah, they are smart and well known, but just remember -- they wrote some of their best books right here at the wilson center. and they are going to write their next best books right here at the wilson center. rob served on the national security council, as director of nonproliferation in the clinton administration. that was in another century, folks. he just put out a very important monograph on iran's nuclear chest.
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i can think of no better tribute to michael than the conversation we will have today. only one thing is missing in that conversation -- michael. at the close of our discussion, join us for a reception in the dining room, which is right here on the sixth floor. let me say just one more time how much we love michael, and i will turn the program over. hank you for coming. >> thank you, jane. it is fitting that we honor michael today by addressing the vital issue on which he worked with such passion and determination in his final years. michael is missed for so many reasons, his friendship and collegial presence, the integrity of his work, his clarity of thought. this panel includes two
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journalists -- on my left, david sanger of "the new york times," and a national security correspondent. avid was a public policy scholar. he more recently wrote "the way of the knife." not long ago, a meeting on iran's nuclear challenges would have focused on the possibility of u.s. airstrikes on iran. now nuclear diplomacy is playing out against the backdrops of u.s. airstrikes against isis, in tacit alignment with iran. negotiators just meant in oman to narrow the gap between the two sides.
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before hand, president obama wrote to the supreme leader, urging him not to miss a istoric opportunity. so what are the prospects for a nuclear deal? the division of labor on this panel is that i will frame the nuclear issue within the broader context of u.s.-iranian relations. david sager will follow with a more detailed assessment of the nuclear diplomacy. ark zandi will conclude to assess how the tumultuous regional developments, particularly the war against isis, will affect nuclear negotiations. after these initial presentations we will have an exchange among the three of us and open the floor to questions. it should be a straightforward trade-off between technology
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and transparency. iran would retain a limited nuclear program under international safeguards, in return for the lifting of economic sanctions. technical details, such as numbers of permissible centrifuges, the scope of international inspections, and a timetable of sanctions based on iranian compliance, could be worked out. on technical grounds, such an agreement would fall within the declared u.s. and iranian position. iran's nuclear program is determined and incremental, but it is not the manhattan project. it is a crash program to acquire a weapon in the face of an existential threat. the dilemma is that iran has mastered uranium enrichment. centrifuges that can spend to produce low enriched uranium for power reactors can keep spending to yield highly enriched uranium for bombs. any country that has attained
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this level of technological advancement is a virtual nuclear weapon state. from a national security perspective, a nuclear hedge is iran's strategic sweet spot, maintaining the potential of the nuclear option, while avoiding the regional and international cost of international weaponization. "as long as we can enrich uranium and master the nuclear fuel cycle we don't need to do anything else. our neighbors will be able to draw the proper conclusions." president obama has declared that the u.s. objective is to prevent iran from obtaining nuclear weapons. by drawing this redline and preventing weaponization, the president has signaled that the united states would not launch a preventive military action to deny iran any nuclear hedge
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options. this is the main point of contention between president obama his congressional critics and president netanyahu, who want a full rollback, to deny iran any hedge. since the nuclear diplomacy is focused on founding, not eliminating, the enrichment program, the regime will retain the option, a hedge for a nuclear weapon. the major stumbling block in the negotiation has been the scale of the uranium enrichment program that iran would retain. the number of centrifuges and their sophistication, as we will hear from david, are key to extending the timeline for a potential breakout. that is the number of montserrat would need to enrich weapons grade material, if the regime made the strategic decision to weaponize. the u.s. position is that this
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breakout. for converting a hedge into a weapon should be long enough, at least 12 months, for the united states to have sufficient strategic warning to mobilize an international response. in other words, an agreement should not leave iran one screwdriver turn away from a bomb. between these two points on the technology continuum, hedge versus weapon, there ran and the united states should be able to work out an agreement. the hard reality is that the nuclear impasse as so far proved intractable because of its quintessentially political character. for both iran and the united states, the nuclear issue is a proxy for a more fundamental debate. this embedded status remains the key determinant of whether nuclear diplomacy can prove successful. in iran, the nuclear issue is a
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surrogate for the defining debate of the future relationship with the outside world. whether "the islamic republic is a revolutionary state or an ordinary country." in america, and france nuclear challenge has also been a proxy for more fundamental debate about the threat posed by rogue states in the post-9/11 era. the obama administration dropped the term rogue state used by the bush of ministration, and instead called iran an outlier. essentially irredeemable, that they're threatening behavior was inextricably linked to the character of their regime. this argument was central to the bush administration's case for preventive war in iraq. by contrast, the outlier rubric was explicitly intended to suggest it was ready for it around to rejoin the community of nations, if the tehran
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regime complied with the reaty. yet the tension between the competing ejections of regina change in behavior change continues to churn the debate, has a major criticism of obama posner nuclear policy is that it does not address other threatening behavior such as state sponsorship of terrorism that derives from the character of the tehran regime. onclusion was the finding that ehran's decisions are guided by a cost-benefit approach rather than a rush to a weapon, irrespective of the political, economic, and military costs. this analysis countered the depiction of the rent as an under, irrational, rogue state. president obama has questioned whether "the there any regime's ideological commitment is such
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that they are not making a simple cost-benefit analysis." when asked whether the regime was messianic or rational, president obama said that "iranian decision-making indicates that they care about the regime's survival." obama has further argued that the crippling pressure of sanctions, granting the iranian economy to a halt, prevents the tehran regime with the opportunity to make a strategic calculation to defer a decision o weaponize. the paradox of nuclear diplomacy with iran regime is captured and an anonymous quip about the economy -- your rent is not respond to pressure, that without pressure iran does not respond. -- the punishing international sanctions that it weakens the
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economy. while acquiescing to the nuclear diplomacy in the wake of his june, 2013 electoral mandate, the supreme leader remains the final arbiter of any respective agreement. his decision will hinge on how he manages the unresolved tension and around competing identities. economic sanctions, whose effects are now compounded by the drop in the price of oil, brought around to the negotiating table. it will crucially affect the supreme leaders decision to accept or reject terms for a comprehensive agreement that meaningfully bounds iran's nuclear infrastructure. that strategic calculation will be based on whether the economic benefits of the agreement, for sanctions relief, outweigh the political costs of alienating the core, hard-line interest groups,
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especially the revolutionary guard upon which the regime's revival depends. so here we are as the deadline approaches. there are three possible outcomes. breakthrough, breakdown, or muddling through. a breakthrough that strikes the right balance i hedging -- by hedging and give each side a winning narrative. the tehran regime said he could stand up to bullying, thereby preserving its hedge, and fended off efforts to link the nuclear issues to other issues. the obama administration could claim that it has capped a latent iranian capability latent by extending the breakup period for potential weaponization. they could put them on a slippery slope of demands for the west for additional policy
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changes, and for that reason, he may balk. a breakdown in negotiations with not inherently push iran into a nuclear breakout. iran has no immediate national security imperative to acquire nuclear weapons. the tehran regime would maintain a hedge, keeping the weapons option open while avoiding the international and regional all-out of weaponization. in the event of a diplomatic breakdown, the possibility of military action would invariably come to the fore. obama's redline on weaponization pushes off the decision on the use of force, and is a reflection on how unattractive that option would be. that would be the most telegraphed punch in history and it runs up against major liability. it would not end the program ut merely delay.
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"you can't bomb knowledge." even a so-called limited strike could escalate into a general war. he has warned that military action would lead to a iranian retaliation against u.s. interests worldwide. in addition, bombing active nuclear installations carry a ifg radioactive toxins into the environment and causing civilian casualties. finally, a military strike could well generate a national backlash within iran with a perverse consequence of bolstering the regime. increasingly plausible is the outcome of neither breakthrough nor breakdown but muddling through. another agreement which would incorpor been made and extend the talks. this is plausible given the major political investment both sides have made a nuclear
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diplomacy and their mutual interest in averting a breakdown with all its uncertain escalatory potential. iran would be willing to work with united states against isis if is the obama administration would be more flexible in the nuclear negotiations. by attempting to link the regional conflict with isis, it risks overplaying its hand. the campaign against the slamic state offers the tehran regime leverage in the nuclear negotiations, nor a reason to hold out. the united states has given way to diplomatic realities and fallen off it maximalist position of zero enrichment centrifuges spinning. the p5+1 are now offering around a straightforward trade-off between technology, a program, and transparency.
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ssurances that a civil nuclear program is not a masquerade for weapons program. that tehran regime should take the deal and not miss a istoric opportunity. let me turn to david sanger, who will provide more details of the negotiation. >> thank you. i think michael would have been extremely pleased to see this room completely jammed in a session that is much more about him than about anything we can say. i was lucky enough to be working on finishing up the inheritance here when michael first joined as a fellow. at the end of the day, he would come by, my office or his office, and his endless curiosity for how all this would play out -- his love of
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the wonderfully ambiguous nature of dealing with the iranians, the questions of whether or not the specifics of the deal led to a much greater olitical reconciliation, a subject that my colleague will take up in a moment, really fascinated him. but he was also wonderfully competitive, in that way that someone who has been a reporter all his life can be. when i reported in the book i wrote after i had done the inheritance that the united states had been involved in a lengthy cyber sabotage effort against the iranian nuclear program, one that was really the first use of a cyber weapon by the united states against another state, i think michael was probably the first person
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who called me the day we ran the excerpt in the paper. his mind had already moved three steps out to have the iranians would respond, whether or not they would have to set up their own cyber capability, whether we have set back our efforts, whether the publication of this story would help or hurt the negotiation. he was completely wrapped in all of this. so i am sorry he is not here today because i am sure that he would stand up and heartily disagree with several things i'm about to say. make sure that you discount my comments to that end. as rob suggested, there are two ways to look at this deal. one way, a way that many in iran look at, and many in congress look at, is as a political deal. don't bother me with the
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details -- i don't want to count centrifuges, i don't want to know how many tons of enriched uranium the iranians have -- i want to know if we have a political will on both sides to make a decision that will end 35 years of enmity between these two countries and begin to move us into a different place. that is one way to look at the deal. the second way to look at it is -- the way i think the israelis look at it, people at the weapons labs look at it, and the way president obama has to look at it given the things the united states has said about an outlier state. in any case -- and that is to say, look, it would be wonderful to have a changed
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elationship with iran. but in the end, this is as much about physics as it is about politics. in the end, we have to have the assurance that if they did break out for a bomb or tried to sneak out for a bomb and breakout in sneak out are two different things, that we would have sufficient notice, that we would have time to react. our difficulty here, as rob suggested, is that president obama's vision of what our ultimate goal is here, to stop iran from having the ability to produce nuclear weapons, is slightly different from the israeli's definition, which is stopping iran from becoming a threshold state. in that same interview, where he used "outlier state," we asked the president if he was prepared to let iran be a
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screwdriver step away. he thought about it and said i will not parse that issue. it has been important with the administration not to parse it, because once they start doing that, you end up getting into an argument with congress, with israel, with the saudis, with everybody else, about how close s too close. if i had one safe prediction, it is if there is a deal, it won't be perfect by any means. it will start that argument that the administration has tried to delay about how close is too close? what are you willing to live with?
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would you have time to respond? would you have the political will to respond? that is why it is important that if there is a deal, it is strong enough that it can withstand all of those kinds of questions. it is not really a choice between a political deal and a technical deal, you are going o have to have both. let me look briefly at what it would take to get there. wendy sherman and secretary kerry have both used the same phrase in the past month or two, which is that iran has four pathways to a bomb in the united states has cut off each one. the first two are essentially the same pathway from different places.
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they are enriching uranium, either in a plant or in the deep underground plant that iran had hidden, widget informed the iaea about. that pathway is really one about mathematics. if there is more fuel on hand in iran, you need to have fewer centrifuges so that fuel would take longer to produce that fuel. if you have less fuel in iran, you can have more centrifuges. and so the story that we ran with 10 days ago that described an interesting, temporary
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agreement that has been reached between iran, russia, and the united states, to ship out much of its fuel -- we don't know yet exactly how much -- so it could be turned into fuel for the nuclear reactor at bashir, could be the key to unlock this. they could be one of the technical solutions that unlocks the political equations, where those two circles meet. but it leaves many things open. first of all, there are some in congress and some in the arab states and certainly many in israel, who will go back to the original position, which is you can't afford to have any centrifuges are any new rear fuel in iran. that was the position of the ush of ministration. unfortunately, they turned down the deal in which they might conceivably have frozen a few hundred centrifuges.
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now we are in a negotiation with iran at a moment where they have 19,000, which are ctually running. as rob suggested, we are going to have a deal in which they have something spending, and the question is, can you limit that enough? the politics of this, as a matter of national pride. the supreme leader declared over the summer several times that iran would eventually have to have a capacity that is roughly 10 times the existing centrifuge capacity. he actually talked about having 190,000 swu, separated work units, and michael could describe to you much better than i could what those are. you had the supreme leader talking about the throughput of centrifuges, i don't think i have ever heard a national leader do that, certainly never
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president obama. the difficulty this creates is that the negotiators have to find a way to strike a deal that ultimately, at some point in the future, doesn't get in the way of a supreme leader's ultimate goals still being the national goal out here. if he had simply said a number around the existing capacity that would have been possible. by setting a number that was so high, he has made this difficult. fortunately, he didn't say when. one of the big arguments is how long will this deal last, and when it is over, does iran become like japan? essentially lifted of any sanctions. so that is one big issue. pathway one and pathway
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two. the united states has one weapon the united states believe could get added. you have got a slightly different technical problem about having the ultimate deterrent. the third pathway to a bomb is producing plutonium, that would be through the iraqi reactor. a heavy water reactor. it looked like they had come up with a space-saving idea, turning it into a research and development plans -- i don't think the americans particularly care if it was a bowling alley. they just wanted it to be something where you could not e producing plutonium. that deal was beginning to crack a bit come the fall, and we will have to see on the 24th
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whether or not they have come up with a solution. the essential element there is that the israelis so far have never liked one of their adversaries fuel one of these reactants. the iraqis were about to a 1981, they lost the reactor. the syrians were preparing to in 2007, that reactor disappeared one night. it is important here that they get to a point where they are not actually fueling it. the last element, the last pathway to a bomb, is the one that the fewest people in congress discuss. that gets almost no discussion in the political realm, and yet if you went out to los alamos or the complex in tennessee, it is the one that captivates everybody who has got technical knowledge. the covert pathway to a bomb.
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it is much harder to design a negotiated settlement that puts restrictions on a facility that may not exist now, that whether it exists or not you don't know about it, or may exist at some point in the future. two of the biggest elements of the deal to look at is if they actually get to one in two weeks is if it provides enough insurance that inspectors can crack back to the earliest elements of nuclear material. this was something that ascinated michael. making sure that you will never gets diverted to a place we don't know about. secondly, whether you could have very invasive inspection and all the little spots around iran, where they produce the centrifuges.
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thirdly, and this would be the hardest one for the iranians, because it would get so much into an issue of national pride, whether the iaea can answer a list of 12 questions about pre-2003 to the current day about what work was done, if any, on what they delicately called the possible military dimensions, which means work on the design of a weapon. you all read about the laptop in 2005. the arabians have said it is all fabrications -- but the fact of the matter is that this creates a division between those who say this agreement is all about the future. what we need is to forget what the iranians have done in the past, this is not a reconciliation process, this is about stopping them in the future. and those who say, if you don't
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understand the full past then you don't understand how long it would take them once they have the fuel to actually make a weapon. the united states has never declared itself fully on this issue. it is said it is up to the iaea, for these guys to come clean, but they never say how much they are going to press that. you should be looking for that because it gets to the question of how invasive the inspections will be, how embarrassing, whether the answers that iran provides would be provided in ublic. so -- that is the nuts and bolts. to back off just a bit -- what are the options if this is, as rob suggests, a model through? and i would never go against rob.
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it would, i think, be just short of miraculous to have a full agreement by the 24th. with all of the details ready to publish, to hand everybody out. maybe it will happen. nobody would be happier than me. i would like to write about something else. but the fact of the matter is i think it is unlikely. my guess is that there will be some enunciation in which they have come to some agreements, some areas where they can't agree yet, another extension, more discussion, and this becomes a little bit like the mideast peace process, where you try to resolve a few issues and come back and try to add on and you hope you are not back flipping on the ones you have already agreed on. there is some riskier that the same thing will happen in a smaller agreement, where
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everybody stood in front of the camera and said we have an accord. it involves fuel for the tehran research reactor. then the supreme leader killed t. will the supreme leader have endorsed it prior to that announcement? the same question could be asked here because the president clearly believes he can do the sanction lifting by his own authority. there are many in congress, including the newly elected republican majority, who want o take a vote on this. that could have a big effect on the outcome. if the iranians do not believe in their hearts that the house and senate could permanently lift the sanctions, they might well hesitate to sign a deal. and we would blame them if we were in their position -- we might well take the same position.
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if on the other hand the president tried to get that lifting early on in the agreement, it would probably ail. and he would not be in a position to have his fingers on sanctions. he wants to lift sanctions as he iranians perform. that does not lend itself well to congressional votes. do not look at it as a deadline, look at it as the end of a quarter in all of this, because in the political process in iran and in the united states, there will be a lot left. i often say to people that getting this deal doesn't require having one deal, it
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requires having three deals. it is a deal between the u.s. negotiators and the iranian negotiators, the easiest of the three. the deal between the president and the foreign minister. there is a deal that has to be struck between our president and our congress, that is an equally tough deal. so -- the 24th is a fascinating marker and i'm sorry michael won't be around to have it in his books. i think we have a long way to go. >> thank you, david. nuclear negotiations are playing out against the backdrop of war in syria and iraq which threaten

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